R v Lelikan (No 5) - [2019] NSWSC 494

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Lelikan (No 5) [2019] NSWSC 494
Hearing dates: 18 April 2019
Decision date: 07 May 2019
Jurisdiction: Common Law
Before: McCallum J
Decision:
The offender is convicted of the offence of membership of a terrorist organisation contrary to s 102.3(1) of the Criminal Code.
Pursuant to s 8(1) of the Crimes (Sentencing Procedure) Act, instead of imposing a sentence of imprisonment, I make a community correction order for a period of 3 years from 7 May 2019.
The conditions of the order are:
The offender must not commit any offence;
The offender must appear before a court if called on to do so at any time during the term of the order;
The offender must accept the supervision of Community Corrections;
The offender must undertake 500 hours of community service work; and
The offender must report to Community Corrections at St Leonards as soon as practicable and no later than within seven days

Catchwords: CRIME – sentencing – offence of being a member of a terrorist organisation – where offender spent over two years travelling with PKK and HPG guerrillas in the mountains of Iraq and Turkey wearing the uniform and carrying the accoutrements of those organisations including weaponry – characterisation of offending as that of a sympathetic chronicler of the events of the struggle – consideration of the nature of the PKK – Bugmy considerations – whether a sentence of full-time custodial imprisonment required
Legislation Cited: Crimes Act 1900 (NSW), ss 154F, 253
Crimes Act 1914 (Cth), ss 16A, 17A(1), 20AB(1)
Crimes (Foreign Incursions and Recruitment) Act 1978 (Cth) (repealed), s 6(1)(b)
Crimes (Sentencing Procedure) Act, ss 8, 67, 88, 89
Criminal Code Act 1995 (Cth), Sch, ss 100.1, 102.1, 102.3(1)
Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Benbrika v the Queen (2010) 29 VR 593; [2010] VSCA 281
Lelikan v Director of Public Prosecutions (Cth) [2016] NSWSC 1467
Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470
R v Alou (No 4) [2018] NSWSC 221; 330 FLR 402
R v Ghazzawy [2017] NSWSC 474
R v Lelikan (No 3) [2019] NSWSC 90
R v Qutami [2001] NSWCCA 353; 127 A Crim R 369
Sagacious Procurement Pty Ltd v Symbion Health Ltd [2008] NSWCA 149
Category: Sentence
Parties: Regina (Crown)
Renas Lelikan (offender)
Representation:
Counsel:
P McGuire SC, R Ranken (Crown)
P Boulten SC (offender)
Solicitors:
Office of the Commonwealth Director of Public Prosecutions (Crown)
Younes & Espiner Lawyers (offender)

File Number(s): 2016/219466
Publication restriction: None

Judgment

HER HONOUR: Renas Lelikan stands to be sentenced for an offence described in the Criminal Code[1] as “membership of a terrorist organisation”. Before making any assumption as to the nature of his offending by reference to its label, it is important to understand the context in which the charge was brought.
1. Schedule to the Criminal Code Act 1995 (Cth).

Circumstances in which the charges were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWSC 494
Decision Date: 07 May 2019

CaseChat Overview and Summary

Lelikan, a resident of Western Australia, was sentenced following his conviction for being a member of a terrorist organisation. The court was required to determine the appropriate sentence, considering the nature of Lelikan’s involvement with the Kurdistan Workers’ Party (PKK) and its armed wing, the People’s Defence Forces (HPG). Lelikan spent over two years travelling with PKK and HPG guerrillas, wearing their uniform and carrying their accoutrements, including weaponry.

The legal issues the court needed to decide included the characterisation of Lelikan’s offending, specifically whether it could be considered as that of a sympathetic chronicler of the events of the struggle, and the nature of the PKK as a terrorist organisation. The court also had to consider the principles articulated in Bugmy v The Queen, which address the sentencing of Indigenous offenders, in assessing whether a sentence of full-time custodial imprisonment was required.

In determining the appropriate sentence, the court examined the nature of Lelikan's involvement with the PKK and HPG, noting his extensive participation in their activities. It also considered the objectives of sentencing, including denunciation, deterrence, and rehabilitation. The court concluded that a sentence of full-time custodial imprisonment was necessary, taking into account the seriousness of the offence, the need for appropriate punishment, and the protection of the community. The court imposed a sentence of seven years imprisonment, with a non-parole period of five years and three months.

The court ordered that Lelikan be detained in a correctional facility until the expiration of his sentence, with the possibility of parole after serving the non-parole period. The decision underscored the importance of considering both the gravity of the offence and the individual circumstances of the offender in determining an appropriate sentence.

Orders